中国现行继承法与民间继承习惯——分家析产习惯与继承法的协调和冲突

On the Current Inheritance Law of China and the Traditional System of Inheritance——Conflict and Coordination between Inheritance Law and the Traditional System of Wealth Sharing

沿袭二千多年的分家析产习惯至今仍保留在21世纪的中国农村。由于现行继承法与传统继承习惯的不同,导致分家析产纠纷发生后,司法解决能力减弱。为确保家庭成员合法的财产权益与家庭的和睦团结,继承法修改应结合国情,正确处理法律移植和本土化的关系。

The norm system of wealth sharing among family members, which has been followed for more than 2000 years, is still deeply rooted in the 21^st century in the rural areas in China. However, Inheritance Law is quite different from the traditional custom of wealth sharing, which results in the weakening capability of legal solution to civil disputes. In order to protect the rights of family members to gain legal property and to prevent families from falling apart, Inheritance Law should be revised according to the realities of China, balancing the relationship between the transplantation of law and localization.